Does Georgia Own Your Marshlands? Yep, Unless it or the King of England Gave it to You

Georgia’s 1981 Protection of Tidewaters Act explicitly declares the State of Georgia to be the owner of all beds of tidewaters within the State. Common law already found the state to have title to such property, so the Act merely codifies existing law and clearly states that it owns the property as successors to the Crown (King/Queen of England). It also goes one step further to clearly define the state as not just owner, but as trustee of the rights of the people of Georgia to use tidewaters for enjoyment, commerce, and navigation; this, again, is the codification of existing common law – the Public Use Doctrine.

In practical terms, this means the State of Georgia owns all tidewaters and marshlands unless a property owner can trace their title all the way back to either a grant from the Crown or a grant from the State. Not only do those documents have to still be in existence, they have to specifically mention the tidewaters in the conveyance and, of course, be readable. That last one may be the trickiest requirement. Many documents on the real estate books from around 1900 are almost completely illegible and in many situations the deeds we’re referring to were written decades prior to that.

This is an actual, fairly legible Crown grant from the late 1700s to Richard Morris in Virginia via The Morris Stand

The issue is fresh again because landowners in coastal Georgia are currently battling the State to prove valid title to the surrounding tidewaters. Raccoon Key, a small island just north of the St. Mary’s River adjacent to Cumberland Island’s southwestern shore, is made up of freshwater ponds, highlands, and marshlands. The State of Georgia believes that most of the island, 1700 acres, is marshlands and tidewaters and is therefore owned by the State.

In the above map, Raccoon Key is to the southwest of Jekyll Island at the mouth of the Satilla River. The green patch in the lower right is the northern portion of Cumberland Island.*

That, however, is not the belief of Mapache, LLC. It believes it can trace title back to valid Crown grants from the State of South Carolina in 1763. Since both parties claim ownership, Mapache filed a quiet title action against the State of Georgia to let a court decide valid ownership of the land. The purpose of such an action is to quiet any claims other parties may have to a particular piece of property, as this clouds title. The more you can reduce clouds on title the more marketable the property.

The only problem is that under the Georgia Constitution, the state, as a sovereign, is immune to suit unless the legislature specifically says otherwise. O.C.G.A. 23-3-60, which establishes quiet title actions, does not say otherwise. This seemingly means that Mapache has no recourse since it cannot sue the State to invalidate their title claim.

Such a result, though, would be disastrous. It would mean that any piece of property is always under the threat of the State simply asserting title to such property, which would reduce the marketability of all property. This is essentially what the Supreme Court of Georgia said in TDGA, LLC v. CBIRA, LLC, a case it resolved last month.

In a unanimous opinion, the Court said barring the judicial branch from resolving title cases that involve the state as a claimant undermines the separation of powers. However, its conclusion wasn’t based on this separations principle. Instead it simply found that a quiet title action is an action “in rem.” Meaning it is an action not against a person or entity, but against a piece of property. The State is a relevant party to such an action since it claims title to the property in question, but fundamentally the action is against the property; therefore, sovereign immunity does not exist and the court is free to hear and adjudicate a quiet title action involving the state.

A view of Cumberland Island from Raccoon Key. By Alan Cressler via Flickr

While the Supreme Court cleared the way for Mapache to challenge title, it still must produce legible documents that clearly show the marshlands and tidelands were conveyed by the Crown. Back in 2006, the Georgia Supreme Court heard a similar case. In Black v. Floyd, the judgement of the lower court was affirmed by the Supreme Court because the landowners could not clearly show the property was conveyed by the crown. They had the documents, but they were so illegible that as a matter of law the court was able to rule for the State of Georgia. The landowners stated that the documents instructed the grantee to drain swamp and marsh “if any such contain herein.” The Court, though, said that even if the documents did say that, it wouldn’t be enough to show that the Crown clearly intended to convey tidewaters.

So Mapache has its work cut out for it. The case, Mapache, LLC v. State of Georgia, is currently on the docket in the Superior Court of Camden County.

Cover Photo: Marshlands on Tybee Island by SustainAtlanta

*The article was corrected on April 12, 2016. The article previously stated Raccoon Key was southwest of Cumberland Island.

Interesting article, thanks. So correct me if I’m wrong in my understanding here. Raccoon Key is an island that shifts from being underwater and above water based on the tides? And the issue is whether or not this can actually be considered land? Obviously Georgia doesn’t want this type of land to be privately owned, would that just be for safety reasons? What use could you possibly have for that type of land anyway?

The issue in this particular case is very narrow – do the landowners even have the legal right to file a quiet title action against the State? The Supreme Court said yes because technically the action is against the property, not the State so sovereign immunity doesn’t apply.

Then the question becomes can the landowners prove a valid grant from the Crown? If not, then they would dispute the land that GA says is marshlands and tidewaters so GA would have claim to less area – under the Act, GA owns the land underneath all tidewaters, which is generally defined as any water affected by tides.

Part of it could be for safety reasons, but it’s mainly because under the Public Use Doctrine and The Protection of Tidewaters Act, GA owns the waterways as a means of facilitating trade, maintaining the navigability of the waters, and allowing residents to use the waters for enjoyment.

The landowners claim that they actually want to tear down some dykes to allow for the creation of more marshlands. This could be the case, but they may also want to dredge the marshlands to make way for development. They would need an EPA permit to do so, though.